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VI
IDENTIFICATION
A. PHOTOSPREAD AND DUE PROCESS
The record is peppered with respondent's hints that the pretrial identification of Hazners by the government's witnesses was "constitutionally deficient." Although the respondent has invoked the Constitution freely, he has avoided any precision in doing so, thus preventing close scrutiny of his argument. 1We assume his rationale is: (1) the procedures used by the Israeli police were unnecessary and suggestive; (2) the identification of the respondent by the Israeli witnesses was tainted by this suggestiveness; (3) the evidence of the identification should therefore be suppressed since reliance on it by this Court would violate respondent's Constitutional right to due process of law.
Each component of that argument is faulty. First, respondent's extensive cross-examination of the witnesses and the Israeli police inspector 2revealed that the suggestive practices about which respondent hypothesized did not take place. Second, as a logical proposition it is clear that the probity of an identification depends not on the suggestiveness of the procedure, but on the witness's opportunity to observe and ability to remember. The Supreme Court has so held in Manson v. Brathwaite, 432 U.S. 98 (1976). It follows that "3the admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process..." id. at 106
Examination
Here, at least, the INS states matters as they were. When Hāzners's photo is introduced to potential witnesses and described as that of a known war criminal after the INS was fully aware there was no documentary evidence indicating Hāzners was a Holocaust collaborator, how is that not suggestive and prejudicial?
The INS misrepresents testimony. "Suggestiveness" starts at advertising for Arājs Kommando witnesses and then including Hāzners's photographs, including at least one with his name written on the front. As recent Soviet émigrés, all would have been aware of the Soviet (show) trial and charges against Hāzners. The Israelis merely affirmed the Soviet "history" their witnesses already knew.
This and several more pages are devoted to why the court should trust the witnesses' identification. Hāzners defense cited even more court cases regarding eyewitness testimony unreliability. The Israelis did everything from introduce every photo as a war criminal, to rehearse identification, to hold a going-away party for the witnesses before they departed for the United States. However, the underlying issue is that research has conclusively demonstrated that memory is malleable, meaning that suggestiveness did not originate with the Israelis but with inculcation over more than a decade and a half prior of Hāzners being featured in the media annually, and prominently, as the leading Latvian Nazi war criminal to be brought to justice. Assuming truthfulness, Mendelkorn's testimony, as emphatic as it is mistaken about Hāzners's rank, is proof enough.
Lastly, "testimony concerning a suggestive and unnecessary identification procedure" is not quite the same as testimony extracted via a suggestive identification procedure responsible for generating 100% of the basis for a case.